The opinion of the court was delivered by: PARKER
(Dismissing Complaint as to Mercantile and Plan Committee Members)
Plaintiffs in this action are former employees of U.S. News and World Report magazine ("U.S. News") who retired or otherwise separated from the company in the year 1982.
They seek recovery from the magazine, several former members of its board of directors, an independent appraisal firm, the magazine's Profit-Sharing Plan ("Plan"), Mercantile-Safe Deposit and Trust Company ("Mercantile"), the Plan trustee, and current members of the Plan's management committee (Gretchen Langston, James Glassman, John Mashek and Neil Rice).
The gravamen of plaintiffs' amended complaint is that, by a pattern of concerted activity, the details of which need not be discussed here, these defendants, except for the Plan trustee and the Plan Committee members, caused plaintiffs' retirement benefits, as measured by U.S. News stock held by plaintiffs and by the Plan, to be undervalued. Such undervaluation allegedly became apparent in 1984, when U.S. News was sold to Mortimer Zuckerman for approximately $140 million.
This suit follows upon the heels of class-action litigation commenced in early 1984 by employees who during the years 1974-1981, left the employment of U.S. News. Foltz, et al. v. U.S. News & World Report, Inc., et al., 613 F. Supp. 634. On June 14, 1985, this Court, on application of the Foltz plaintiffs, enjoined distribution of approximately $41.7 million
of the Plan assets, a sum deemed sufficient to satisfy any likely judgment awarded those plaintiffs. 613 F. Supp. 634 (D.D.C. 1985). One month later, in response to a request for a temporary restraining order filed by the Richardson plaintiffs, which was treated as a motion for a preliminary injunction, an additional $4 million was held back, Order of July 15, 1985, in addition to the $41.7 million held back in Foltz. Shortly thereafter a portion of the remaining funds was distributed to current beneficiaries of the Plan.
The Richardson plaintiffs now charge that the Plan trustee, Mercantile, and the members of the Plan Committee, by approving the distribution, violated fiduciary duties imposed upon them by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq. Amended Complaint paras. 5.01-5.15 (Counts 7-9).
Plaintiffs also allege that these defendants breached their fiduciary duties in approving the 1984 sale, whose terms included the diversion of $13 million of the proceeds to most of the director-defendants as consideration for "phantom" stock they held, and $10 million to an indemnification fund. Amended Complaint paras. 5.14(b), (c).
A. Fiduciary Status of Mercantile Under ERISA
As the controlling statute, ERISA provides the guidelines for determining who is a fiduciary with respect to an employee benefit plan. ERISA expressly limits fiduciary status to those persons who either exercise "discretionary authority or . . . control" over the assets or administration of a plan, or "render  investment advice for a fee. . . ." ERISA § 3(21), 29 U.S.C. § 1002(21). Those persons acting as trustees who perform wholly nondiscretionary functions fall outside the class of actors upon whom Congress sought to impose fiduciary duties. See, e.g., O'Toole v. Arlington Trust Co., 681 F.2d 94, 96 (1st Cir. 1982); Robbins v. First American Bank of Virginia, 514 F. Supp. 1183, 1189-91 (N.D. Ill. 1981); Hibernia Bank v. Int'l Bhd. of Teamsters, 411 F. Supp. 478, 489-90 (N.D. Cal. 1976).
Plaintiffs allege no facts that would support a threshold determination of fiduciary status as to Mercantile.
What allegations they do make already presuppose the existence of such status. In this connection, for example, plaintiffs charge that, in approving the terms of the 1984 sale, Mercantile violated the trust it held on behalf of the plaintiffs.
Yet no violation of trust could have taken place unless there arose a trust relationship at the outset. Neither did Mercantile stand in a fiduciary relation to the plaintiffs while they were still employed, nor after they left their employment. If Mercantile can be said to be a fiduciary at all, it is such with respect to the current Plan participants,
who benefited from the 1984 sale, not with respect to former participants who terminated their relationship with the magazine well before the sale. Consequently, if any class of individuals has standing to object to the terms of the sale, it is the current, not former, beneficiaries of the Plan.
Both Mercantile and the Plan Committee members contend that the issues raised in Counts 7 through 9 of the amended complaint are not yet justiciable. The defendants are correct; it is not within the purview of federal courts to decide controversies based on contingencies that have yet to ripen into actualities. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 689, 69 L. Ed. 2d 918, 101 S. Ct. 2972 (1981); Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 304, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981); Metzenbaum v. Federal Energy Reg. Comm'n, 219 U.S. App. D.C. 57, 675 F.2d 1282, 1289-90 (D.C. Cir. 1982); American Internat'l Group, Inc. v. Islamic Republic of Iran, 211 U.S. App. D.C. 468, 657 F.2d 430 (D.C. Cir. 1981); 13A Wright & Miller, Federal Practice and Procedure: Jurisdiction 2d §§ 3532, 3532.2 (1984); C. Wright, Law of Federal Courts § 12 (4th ed. 1983).
Plaintiffs' claim against Mercantile and the Plan Committee members is not that they were involved in the underlying transactions that initially gave rise to this and the Foltz suits, but that these defendants have acted so as to lessen the amount of funds available to satisfy a possible judgment to be awarded either to the Foltz plaintiffs or to those in this suit. For such a claim to state a cognizable cause of action, the distribution occurring in July 1985 must have been itself wrongful. It is not enough that plaintiffs prefer to look to more or deeper pockets than those currently within their reach. Absent some wrongdoing on their part, there is no reason why either of these defendants should be joined in this suit merely to satisfy some speculative shortfall in the recovery available. To this extent, not only are ...